Thursday, April 19, 2018

Defendants in Travis County were far more likely to be convicted of state-jail felony drug charges if they were indigent with an appointed attorney compared to those who hired their own lawyers, according to a KXAN-TV report based on a new Council of State Governments analysis. And police are making more arrests for low-level drug possession, even as jail bookings for all other offenses have declined. (Your correspondent was briefly quoted in the KXAN story.)

Perhaps the most disturbing finding was the effect an appointed lawyer had on case outcomes: The report found that, "80 percent of people in the past five years were found guilty on drug charges if they used a court-appointed attorney. If they paid for their own attorney, only 48 percent were found guilty on drug charges."

These are similarly situated defendants demonstrating radically different outcomes based on how (and how much) their lawyers are paid. Certainly, it's a bad look for the "managed assigned counsel" program in Travis County. Grits believes we'd see much better outcomes from a full-time public defender office. In Harris County, for example, the public defender office "achieved a greater proportion of dismissals, deferred sentences, and acquittals, and a smaller proportion of 'guilty' outcomes, than assigned counsel. HCPD secured acquittals on all charges at three times the rate of appointed and retained counsel."

The Travis County data demonstrate how failure to invest in one part of the system can create even greater costs for taxpayers down the line. By underpaying attorneys who then do not adequately vet cases, more people (2/3 more) are convicted, which then leads to extra costs for incarceration in state jail or supervision on probation. For that matter, some percentage of those sentenced to probation will also be revoked and eventually incarcerated, too.

The upshot: if indigent drug defendants in Austin received a comparable quality of defense as people who hire private lawyers, it would reduce incarceration costs significantly down the line.

In addition, the report cast light on the disturbing trend of law enforcement focusing on victimless drug-possession cases as crime overall declines. From the CSG report:

Bookings in Travis County for arrestees with SJF increased while overall bookings declined

Overall jail bookings in Travis County decreased by 14% between 2013 and 2017, but bookings of arrestees with SJF increased by 9%

SFJ-DP [drug possession] bookings increased by 34%

Why would drug arrests increase during a period when crime and jail bookings overall declined?

My theory: Crime may have declined but the number of police officers and prosecutors stayed the same or increased over the same period, and those people need something to do with their days. At the same time, there are FAR more people using drugs than are routinely arrested, so there is a deep pool of petty, low-risk offenders into which law enforcement may cast its nets. And even if they're only catching "little fish" - state jail felony drug cases involve less than a gram of a controlled substance - at least they're going through the motions of making arrests and enforcing the law. Essentially, this is rent seeking behavior on the part of law enforcement.

Together, this rent seeking activity, combined with institutionalized incentives for poor-quality lawyering among appointed counsel in Travis County, prioritize the interests of players in the system over both defendants' constitutional rights and systemic equity. Thus it's understandable why things would be this bad, just not acceptable.

The fourteenth amendment guarantees equal protection under the law, but that is not being interpreted as meaning person for person equality. Rather, it is applied dollar for dollar, you get what you pay for. As for the police concentrating on petty drug cases, in the philosophy of law enforcement, these 'victimless' crimes are viewed as a gateway to more serious crimes against property and against people. So increasing enforcement of these petty laws is preventive maintenance on the system.

I'd be curious to know what percentage of guilty offenders get off because they have retained attorneys vs. court appointed counsel. And how might this impact long term costs for society and the justice system? It would probably be hard to quantify but you'd have to figure a percentage of these defendants don't say "whew, dodged a bullet there" and decide to stay on the straight and narrow path from that point on.

Having recently dealt with court appointed attorneys representing my 26 year old son, a disabled Marine, with his DUI and another, unrelated charge - it is unbelievable. He had a case in Travis and one in Hays. Both of the attorneys were just awful, but the Travis county one was maybe the worst.Both of them were on the roster to get work in multiple counties. That is their choice, how they make their living, but the clients suffer. One was getting cases in Hays,Comal, Bee AND Nueces counties!The other worked Travis, Hays and Williamson county. They were both arrogant and condescending towards my son and myself. They were pushing my son to take jail time, which meant the easiest option for THEM. Public defenders are definitely a huge part of the high incarceration rates.But, they are the ones that chose to be public defenders, rather than work hard enough to build up a private practice based on a reputation of good work.As far as how much they are paid, I'm not sure if the amount is set by the county or the state, or both. Regardless, they (not all) are doing the very least possible work for each client.

@Txbombshell, there is a difference between public defenders and court appointed counsel. Travis county doesn't have a Public Defender's Office. Cases are instead handled by court appointed private attorneys. Court appointed private attorneys accept appointments from the county at county rates. They also usually have private clients who pay them whatever rates the attorney and client agree upon. That creates a situation in which attorneys might take appointments to supplement their incomes, but don't actually put in the work on those cases, instead giving their time to their private clients whose cases are more financially rewarding. Public Defenders are salaried just like district attorneys. Public Defender offices usually also have support staff, investigators, training, and other institutional resources necessary to appropriately represent their clients. They also often (should?) have a mission-driven, client-centered approach that, I think, serves their clients well. Public Defenders aren't attorneys who weren't willing to work hard enough to build a private practice. They're attorneys who believe indigent defendants deserve quality representation. That's why Harris County's PD's office gets better results than do court appointed counsel.

All of us have the constituional right to use whatever drugs we like as long as people and property are not being harmed. The moralistic excesses and cost of the failed war on drugs does nothing to keep politicians from maintaining policies that never have worked. It's time to legalize drug use and focus taxpayer money on real crimes.

Check out this small-time police department and how they encourage their citizens to help them create crime: https://www.chron.com/neighborhood/friendswood/news/article/Friendswood-cops-Suspicious-behavior-that-merits-12842120.php.

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